TOP BASE DEVELOPMENT LTD AND OTHERS v. LLOYD LAURENCE PHILIP AND ANOTHER

CACV 286/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.286 OF 2007

(On Appeal from HCA 240 of 2006)

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J U D G M E N T

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Hon. Cheung JA:

1.  I agree with the judgment of Yuen JA.

Hon. Yuen JA:

2.  This is the 4^th Plaintiff’s appeal from a judgment of Saunders J  dismissing its application for summary judgment.

Background

3.  The action concerns a block of flats in Mount Davis called King’s Court, Consort Rise (“the building”) which is governed by a Deed of Mutual Covenant (“DMC”) dated 24 November 1982.

Parties

4.  The 4^th Plaintiff is the owners incorporation of the block.  The other Plaintiffs are the owners and occupiers of Flat 2B.  The Defendants own and occupy Flat 1B directly below Flat 2B. 

System of pipes

5.  It would appear that in the interior of Flat 1B are 3 vertical pipes:

(a) a pipe for soil and waste

(b) a pipe for rainwater and

(c) an anti-syphonage pipe.

It is asserted by the 4^th Plaintiff (and not disputed by the Defendants) that anti-syphonage pipes are connected to u-traps of sanitary fitments so as to reintroduce air back to soil pipes for smooth effusion and to allow water to be retained in the u-traps of horizontal soil pipes. 

6.  Below the floor slab of Flat 2B and above the suspended ceiling of Flat 1B, and running along Flat 1B’s ceiling, are horizontal pipes for:

(a) drainage of soil and waste from the sanitary fitments of Flat 2B

(b) drainage of rainwater from the balcony floor drains of Flat 2B and

(c) anti-syphonage for the sanitary fitments of Flat 2B,  

which connect to the respective vertical pipes. 

7.  There is a dispute between the parties as to whether the vertical anti-syphonage pipe inside Flat 1B served the maid’s WC in that flat only.  I shall come back to this later.

Defendants’ works

8.  It is not disputed that about 3 months after the Defendants acquired    Flat 1B in May 2005, their contractor removed and replaced some  of the drainage pipes for Flat 2B located inside Flat 1B and cut off   the vertical anti-syphonage pipe.  The Defendants’ explanation was as follows. 

9.  The 1^st Defendant says that he was advised by Mr Billson, the architect in charge of the decoration works for his flat, that when the Flat 1B suspended ceiling was removed and the horizontal pipes exposed, some of the cast iron pipes were found to be rusting and leaking sewage. 

10.  Three of the pipes had already been replaced by UPVC ones previously: Laurence Philip Lloyd’s aff. para. 38.  (This is not disputed by the 4^th Plaintiff who say that these had been installed previously with its consent to replace leaky pipes: Cheung Man Tak Andrew’s aff. para. 10).

11.  The architect advised that since the leaking cast iron pipes were unserviceable, the Defendants should replace the cast iron pipes so that the entire set would be made of UPVC: Lloyd’s aff. paras.30-31.  The Defendants instructed their contractors to do so.  The Defendants allege that the building management and the 1^st - 3^rd Plaintiffs were made aware of the replacement works as the occupants of Flat 2B were required to refrain from using their sanitary fitments for a period of time.

12.  It is the 4^th Plaintiff’s case that after the renovation, the routing and design of the pipes was altered from the original: Cheung’s aff. para. 22, exh. “CMTA-6".  I shall come back to this issue later.

13.  The vertical anti-syphonage pipe in Flat 1B was also removed.  I shall also come back to this issue later. 

Complaints from Flat 2B

14.  The 1^st to 3^rd Plaintiffs have complained that since the renovation they have suffered the following problems in Flat 2B:

(1)   drainage from the handbasin is slower;

(2)   popping and growling noises have emanated from the drain pipes;

(3)   the water level in the toilet is higher than before;

(4)   a foul odour has emitted from the drainage hole of the bathtub; and

(5)   crawling or flying insects have come from the bathtub drain.

They suspected that these problems have been caused by the works done in Flat 1B below. 

Proceedings

15.  On 4 February 2006 the 1^st - 3^rd Plaintiffs issued proceedings against the Defendants asking for an order that the drainage system be restored to their original structure, and for damages for nuisance, etc.

16.  On 10 February 2006 a Consent Order was made adjourning the 1^st to 3^rd Plaintiffs’ application for a mandatory injunction so that the Buildings Department could provide a report on whether the drainage system of Flat 2B as replaced by the Defendants complies with all relevant legislation and whether the said works raised any health or safety issues. 

Building Authority Report

17.  After a series of inspections, the Building Authority reported on 25 May 2006 that no irregularities were noted in the drainage works in Flat 1B and no further action would be taken by the Authority.

Joinder of 4^th Plaintiff

18.  That was not an end to the matter.  Subsequently on 18 July 2007 the 4^th Plaintiff joined in the proceedings. 

Application for summary judgment

19.  The 4^th Plaintiff is seeking to enforce the Deed of Mutual  Covenant and claims that it is entitled to summary judgment for relief which may be summarised as follows:

(1)    a declaration that the original drainage pipes inside Flat 1B (comprising horizontal pipes at the ceiling of Flat 1B which exclusively served Flat 2B and the vertical pipes which ran through Flat 1B and served inter alia Flats 1B and 2B) formed part of the common parts services and facilities/common area of the building and that the Defendants may not remove replace or otherwise interfere with the same; or alternatively, a declaration that the original vertical drainage pipes (comprising a vertical soil pipe, a vertical anti-syphonage pipe and a vertical rainwater pipe) of the building which ran through Flat 1B and served inter alia Flats 1B and 2B form part of the common parts services and facilities/common area of the building and that the Defendants may not remove replace or otherwise interfere with the same;

(2)    An order requiring the Defendants to reinstate the drainage pipes in Flat 1B which formed part of the common parts services and facilities/common area of the building to their original design, routing and functional/sanitary standard;

(3)    an injunction restraining the Defendants from altering the original design or routing of the drainage pipes inside Flat 1B which forms the common parts services and facilities/common area of the building after reinstatement.

20.  In other words it is the 4^th Plaintiff’s case that quite apart from the disputes between the other Plaintiffs and the Defendants, it was entitled to demand reinstatement of the design, routing, and functional/sanitary standard of the original pipes solely by reason of its rights and duties under the DMC and the Building Management Ordinance (“BMO”).

21.  From the relief set out above, it is apparent that the 4^th Plaintiff is asserting that at least the vertical pipes are common parts services and facilities, if not both the vertical pipes and the horizontal pipes.  I would note that as for the latter, there may be a conflict between its case and that of the other plaintiffs who have asserted an alternative case of their rights to the horizontal pipes.

Defence

22. The Defendants denied that any of the pipes were common parts services and facilities but they argued that even if they were, the 4^th Plaintiff had previously given consent to the replacement of the 3 leaky cast iron pipes by UPVC ones, thereby showing that it accepted UPVC pipes as suitable replacements for leaking cast iron pipes, and that it was guilty of acquiescence as it had raised no objection or query when the 2^nd Defendant informed the management of the replacement works in 2005 (Lloyd’s aff. para.42).  The Defendants also point out that if the pipes were common parts services and facilities, then the 4^th Plaintiff has been remiss in its duties in allowing the pipes to fall into a state of disrepair.

23.  As for the routing and design of the pipes shown in “CMTA-6”, the Defendants’ architect has advised that this would have no effect on the functioning and sanitary conditions of the drainage system: Lloyd’s aff. para. 46 and the Building Authority has also not objected to the new positioning of the pipes.

24.  As for the removal of the anti-syphonage pipe, the Defendants’case was that according to their architect, this only served the maid’s WC in Flat 1B and as they had no use for the maid’s WC, this pipe was cut off and sealed.  I shall come back to this later.

25.  Alternative reasons were advanced for some of the 1^st - 3^rd Plaintiffs’ complaints and the rest of the complaints were regarded as “impossible”.

Judgment

26.  The judge held that the Defendants had in fact altered the routing of the pipes within their part of the building.  He considered that for the purposes of the summary judgment application, it was irrelevant whether the pipes which the Defendants had altered were common parts or not.  The judge noted that the DMC only prohibited the Defendants from making any alteration to the pipes and plumbing “which may cause ... damage and inconvenience [to the other occupiers]”: clause 10(a), or from doing anything in their part of the building which “may be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the said building”: clause 10(c).  And since the Defendants’ expert had offered answers to the matters of which the 1^st - 3^rd Plaintiffs complained, it was arguable that the Defendants’ works had not caused damage or inconvenience, nuisance or annoyance.  Accordingly the case was not suitable for summary judgment.

Appeal

27.  On appeal counsel for the 4^th Plaintiff and the Defendants respectively have provided detailed submissions both in writing and orally which I will not repeat here.

28.  It is important to bear in mind that this is an application for a mandatory injunction by way of a summary judgment application.  In my view, even if the 4^th Plaintiff successfully proved a proprietary right, it would not necessarily follow that a mandatory injunction would be granted at this stage.  Quite apart from the argument whether the reference to “plumbings” in clause 8 of the DMC gave the owner of each flat in which they are located the right to repair them, a mandatory injunction is an equitable remedy and matters such as acquiescence or hardship are fact-sensitive and may have a bearing on whether an injunction or other relief should be granted. 

29.  So for instance even if the 4^th Plaintiff were to successfully prove that the horizontal pipes were common parts services or facilities (whether by reason of the DMC or the BMO or the fact that they had not been designated in an instrument registered in the Land Registry for exclusive use occupation or enjoyment of an owner: Incorporated Owners of Summit Court v Full Surplus Investment Ltd [2007] 3 HKLRD 351 cf. So John & anor. v Lau Hon Man [1993] 2 HKC 356), that would not necessarily mean that it would be entitled to an order that the Defendants should replace the pipes.  This is particularly in light of the evidence that the original cast iron pipes had been unserviceable due to rust and leakage and the 4^th Plaintiff had previously accepted the use of UPVC pipes as replacements.

30.  Again even if the horizontal pipes were common parts services or facilities, the mere fact that their design and routing had been altered would not necessarily entitle the 4^th Plaintiff to a mandatory injunction if it was minimal alteration done as part of the repair work and if it would serve no purpose to reinstate it to the original design and routing.

31.  However I consider that as far as the 4^th Plaintiff’s application for summary judgment for reinstatement of the vertical anti-syphonage pipe is concerned, the Defendants have not provided an arguable defence thereto. 

32.  It is clear that the vertical anti-syphonage pipe was a common part service or facility.  Clause  4(q) of the DMC defined “common parts services and facilities” to include pipes “used or installed for the benefit of the said building as part of the amenities and not by any individual owner for his own use or purpose”.  It is not disputed that the vertical anti-syphonage pipe in Flat 1B was only a section of the vertical pipe running through all the floors of the block from the roof to the car park.  It had clearly been installed for the benefit of the building as part of the amenities.  There is also no question of inconsistency with the case of the other plaintiffs as they have never asserted any right in the vertical anti-syphonage pipe.

33.  I note that at the time of the hearing before the judge, it was admitted in the Defence that the vertical anti-syphonage pipe “also serves to ventilate the drainage of Flats 3B and 1B” (paragraph 11).  The reasonable inference from the word I have italicized is that it served all 3 flats, 3B, 2B and 1B.  In paragraph 47 of Mr Lloyd’s affidavit he says that he had been advised by Mr Billson that the vertical anti-syphonage pipe only serviced Flat 1B and “was of no use to the drainage system of Flat 2B above”.  This is obviously contradictory to para. 11 of the Defence as it then stood.  What Mr Billson said on affidavit was that “the vertical vent pipe [which Mr Lloyd confirms in his affidavit meant the same thing as “vertical anti-syphonage pipe”] that was serving the Maid’s WC was also cut off, sealed and abandoned. This is the subject of one of the Claims that the system is no longer the same as the original.  That is true in as much as there are fewer WC’s, hand basins and shower outlets in the new arrangement on the first floor.  This of course has no effect on the second floor”.

34.  Whilst the fact that there are fewer WC’s, hand basins and shower outlets in the new arrangement on the first floor may have no effect on the second floor, it did not follow that the cutting off and sealing of the vertical anti-syphonage pipe would also have no effect on the other flats, as originally it ran through the entire building and was connected to the u-traps in the sanitary fitments, including those of Flat 2B.  The point of that connection to the through pipe, which the Defendant sealed off, was not dealt with at all.  Accordingly I do not consider Mr Lloyd’s allegation to have been properly founded.

35.  I can see no defence to the 4^th Plaintiff’s claim concerning the vertical anti-syphonage pipe.  As it contains only air, it cannot and has not been suggested by the Defendants that this pipe was leaking effluent and thus required repair.  In any event, it cannot be suggested that the obligation to “repair” a pipe is performed by dismantling it without putting a new pipe in place.

36.  Nor can there be any issue of acquiescence, as even on the Defendants’ own case they had only informed the building management of the replacement of pipes (Lloyd’s aff, paragraph 42), which would not have included the dismantling of the common pipe. 

37.  Nor is there any evidence of hardship to which the Defendants would be put by replacing the section of the vertical anti-syphonage pipe.  The evidence was that it was cut off simply because the Defendants had no use for a maid’s WC.

Order

38.  In the circumstances, I would allow the appeal and set aside the judge’s order only to the extent that summary judgment should be entered in favour of the 4^th Plaintiff for an order that the Defendants be required to reinstate and reconnect an anti-syphonage pipe in Flat 1B in the same location as before and according to the original design, routing and functional/sanitary standard.

39.  As far as costs are concerned, as the 4^th Plaintiff has succeeded partially in its appeal, I would give an order nisi that the Defendants pay 1/3 of its costs of the appeal.  As indicated at the hearing, the costs reserved at the hearing before Saunders J should be decided by the judge. 

Hon. Sakhrani J.

40.  I agree with the judgment of Yuen JA.